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The courts and public opinion: Klarman examines the legal fight for same-sex marriage

By Emily Newburger, November 14, 2012

Michael Klarman’s scholarship has focused on the effect that court rulings have on social reform movements. He argues that when courts get ahead of public opinion, political backlash often follows. That’s what he found in an earlier book he wrote on race and the U.S. Supreme Court, and it is a phenomenon he has also observed in cases involving the death penalty and abortion.

He also details the history of the gay rights movement, the emergence of gay marriage as a legal issue, and the costs and benefits of related litigation over the past 20 years.

Soon after the 2003 Massachusetts decision in Goodridge v. Department of Public Health, which established full marriage equality for same-sex couples in the commonwealth, Klarman wrote an article describing the political toll of the ruling on 2004 elections across the country, including the presidential contest. Since Goodridge, more than 30 states have enacted constitutional bans on gay marriage. Similarly, an earlier marriage equality case in Hawaii (Baehr v. Lewin) led to more than 35 states and Congress enacting defense-of-marriage statutes in the 1990s. In addition, he believes, gay marriage litigation may have distracted attention from other items on the gay rights agenda, such as federal legislation forbidding employment discrimination based on sexual orientation. But Klarman also sees beneficial consequences for the gay rights movement emanating from the litigation, including greater discussion among Americans of “a social reform that previously would have struck many of them as incomprehensible.”

Leah Fasten

HLS Professor Michael Klarman

As he began to focus on the pace at which public opinion had changed in recent years, he came to believe that the legalization of same-sex marriage in all 50 states now appears inevitable in a way that did not seem possible eight years ago. The question, he said, is, “How much of the progress is attributable to the litigation and how much to what you might call the deep background forces that are driving the liberalization of attitudes?” It’s impossible to know for sure, he said, “but it’s possible that the litigation, in addition to producing short-term backlash, also has produced a longer-term advance.”

Klarman noted that it’s been an interesting experience for him, as a legal historian, to write about the present: “When you study things in the distant past, you lose the sense of contingency. Of course, we think, the Civil War had to come out the way it did, because it’s hard to imagine our nation split in two. But when you study events as they unfold, contingency is everywhere. It may mean that you tell more accurate stories when you write about the present because you don’t already know what happens next.”

One development he failed to anticipate was President Obama’s May endorsement of same-sex marriage. Klarman said he is confident the president and his political advisers had looked at the polls and concluded that endorsing gay marriage wouldn’t substantially hurt his re-election prospects. “We want to treat our great presidents as if they were heroes, who did the right thing regardless of political ramification. But that’s just not the way they behave,” he said. “With Abraham Lincoln and the Emancipation Proclamation, Harry Truman and his executive order desegregating the military, and John F. Kennedy and his famous speech proposing a civil rights bill—they all acted only after dragging their feet for years, and only after public opinion had caught up.”

During an interview with the Bulletin in August, Klarman made predictions about gay marriage cases that many believe are headed toward the Supreme Court, including a successful challenge to the federal Defense of Marriage Act in the 1st Circuit. “I could easily imagine the Court’s agreeing with the 1st Circuit that DOMA is unconstitutional. Indeed, I’d go out on a limb and say that’s likelier than not.”

In November, four referendums on same-sex marriage were on state ballots. Although in the past, voters have uniformly rejected gay marriage at the polls, Klarman predicted—correctly—that this year we would likely see a different outcome—in Maine, Maryland, Washington state and Minnesota.

Klarman said it’s been fascinating to see attitudes change during his 25 years as a law professor. When he started teaching at the University of Virginia School of Law in 1987, the Supreme Court had just decided Bowers v. Hardwick, rejecting a constitutional challenge to state criminalization of homosexual sodomy between consenting adults. “At least half of my Virginia students back then thought that ruling was right,” he said. Now, by contrast, he can’t even get most of his Harvard Law students to seriously consider the position that same-sex marriage is not a constitutional right.

In our lifetimes, he predicted, “people will cease to understand why gay marriage was ever a controversial issue, and even those who staunchly oppose it today will have figured out ways to normalize it. Otherwise, no one will take them very seriously. … It happened with race; it happened with women’s equality. It will happen with gay marriage.”